An immense amount of the coverage of the controversy suggests or explicitly says that the Supreme Court, by reversing Roe v. Wade, paved the way for the Alabama decision. The Biden campaign has said this by way of holding Donald Trump responsible for the Alabama decision: His appointees to the Supreme Court were instrumental to Dobbs v. Jackson Women’s Health Organization, which overturned Roe, and Dobbs created the opening for the Alabama court.
This is not true.
• The Supreme Court never read Roe to protect IVF from regulation or restriction (and never made other rulings to offer such protection). Carter Snead, a professor at Notre Dame Law School who specializes in bioethics, emails: “I am not aware of a single SCOTUS or US Court of Appeals precedent stating that states lack plenary authority to regulate IVF. That said, it is well known (and a source of widespread criticism from both conservatives and progressives) that IVF as such is lacking in robust regulation and government oversight, including in the name of consumer/patient protection.”
• State and federal laws and court decisions recognizing human embryos and human fetuses as persons for some legal purposes preceded Dobbs, and courts did not strike them down as inconsistent with Roe. So, for example, the federal Unborn Victims of Violence Act has for two decades recognized that federal crimes against women in which an unborn child is injured — no matter what that child’s stage of development — have two victims.
• Louisiana, decades before Dobbs, outlawed the intentional destruction, sale, or use for research of IVF embryos and declared them to be “juridical persons.” (IVF is still practiced in Louisiana.)
• The Alabama decision itself says, and the dissent agrees, that the state’s wrongful-death law covered unborn children in the womb before Dobbs.
• The majority opinion mentions Dobbs once in its text and twice in footnotes, on no occasion suggesting that its ruling turned on its having become law. (It cites it for backup on points about the historical status accorded to unborn children in law.) The court did not need Dobbs to issue its ruling.
My point in writing this item is not to protect Trump or Dobbs from association with an unpopular decision (albeit a decision I think was legally correct and that has been widely misunderstood). It’s just to note that a lot of the journalistic treatment of this major story is inaccurate, and someone ought to put it into the public record.
P.S. After I wrote this item, I saw that Ed Whelan was on the case a little before me. Given how much mistaken coverage there is, though, I don’t think it will hurt to have two correctives.